Legislature(2003 - 2004)

04/20/2004 08:08 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           HB 514-CHILD SUPPORT ENFORCEMENT/CRIMES                                                                          
                                                                                                                                
MR. JOHN  MAIN, staff to Representative  Pete Kott, reminded                                                                    
members that at  the last meeting, Senator  French had asked                                                                    
for  an amendment  [to  clarify the  language  in Section  5                                                                    
(2)(A)-(C) on pages 3 and 4].                                                                                                   
                                                                                                                                
CHAIR SEEKINS  confirmed that amendment is  now labeled XA.1                                                                    
and  entertained  a  motion to  consider  the  amendment  as                                                                    
Amendment [2].                                                                                                                  
                                                                                                                                
SENATOR OGAN so moved.                                                                                                          
                                                                                                                                
SENATOR FRENCH asked for an explanation.                                                                                        
                                                                                                                                
MR. MAIN  said it basically  specifies that the  standard is                                                                    
"intentionally" in subsections  (A)-(C) and renumbered those                                                                    
sections.                                                                                                                       
                                                                                                                                
CHAIR  SEEKINS and  SENATOR FRENCH  felt that  Amendment [2]                                                                    
reads better than the original language.                                                                                        
                                                                                                                                
SENATOR FRENCH  asked what lines 6  through 15 on page  2 of                                                                    
Amendment 1 would do.                                                                                                           
                                                                                                                                
CHAIR  SEEKINS  clarified  that   the  amendment  should  be                                                                    
referred to as Amendment 2.                                                                                                     
                                                                                                                                
MR. MAIN  explained that provision  has been in  the statute                                                                    
and  CSED has  had  no  problem with  that  language in  the                                                                    
prosecution of cases.                                                                                                           
                                                                                                                                
CHAIR  SEEKINS  questioned whether  the  only  change is  to                                                                    
correct  the numbering  sequence to  conform to  the changes                                                                    
made in the first part of Amendment 2.                                                                                          
                                                                                                                                
MR. MAIN said that is correct.                                                                                                  
                                                                                                                                
SENATOR  FRENCH removed  his objection  to  the adoption  of                                                                    
Amendment 2  so it was adopted.  He then asked Mr.  Main the                                                                    
theory behind  revoking sport  hunting and  fishing licenses                                                                    
for non-payment of child support in Section 9 on page 4.                                                                        
                                                                                                                                
MR. MAIN  told members  that deal  was brokered  between the                                                                    
federal  government and  the State  of  Alaska. The  federal                                                                    
government  requires that  hunting and  fishing licenses  be                                                                    
revocable  but Alaska  does not  track  hunting and  fishing                                                                    
licenses in the same way  that other states do. Other states                                                                    
have  an updated  database; in  Alaska, that  information is                                                                    
turned in to  the state in February or  May. The legislature                                                                    
did not want  to make the revocation of fish  and game sport                                                                    
licenses  part  of  the  earlier   bill  that  provided  for                                                                    
revocation   of   occupational    and   drivers'   licenses.                                                                    
Therefore, the best  remedy was to revoke  the sport hunting                                                                    
or fishing license at the  time of a criminal conviction for                                                                    
non-support. He explained:                                                                                                      
                                                                                                                                
     There are two ways that  it can be taken that way,                                                                         
     one is  civil, which is  to be held in  contempt -                                                                         
     the  court  can  take  at  that  time  or  if  the                                                                         
     individual is  convicted of  failure to  pay child                                                                         
     support, criminal  non-support misdemeanor,  as it                                                                         
     presently  is,  and  that  satisfied  the  federal                                                                         
     government.  They're   not  happy  about   it  but                                                                         
     they're  satisfied  that  at   least  there  is  a                                                                         
     provision  with which  to be  able  to remove  the                                                                         
     hunting/fishing   license.  Basically,   it's  the                                                                         
     privilege  of  hunting  and  fishing  as  a  sport                                                                         
     compared to  subsistence, and that was  one of the                                                                         
     issues  that was  placed  under [AS]09.50.020.  It                                                                         
     lists  out  what   is  considered  a  recreational                                                                         
     license and  what is considered to  be subsistence                                                                         
     and personal.  Recreational is only  considered to                                                                         
     be sports fishing and  sport hunting. The personal                                                                         
     use fishing - dipnetting,  that kind of stuff that                                                                         
     is exempted,  subsistence fishing  and subsistence                                                                         
     hunting is also exempted.                                                                                                  
                                                                                                                                
CHAIR  SEEKINS   said  every  resident   in  the   state  is                                                                    
considered by  state law to  be a subsistence  hunter, which                                                                    
is why  the state has tier  2 permits that anyone  can apply                                                                    
for. That is  not the case under Alaska law  for fishing and                                                                    
there is  no license  for subsistence fishing.  However, for                                                                    
personal use fishing,  a person must have a  license. He was                                                                    
not   sure  whether   Alaska   law  differentiates   between                                                                    
recreational fishing and personal  use fishing to feed one's                                                                    
family.                                                                                                                         
                                                                                                                                
MR.  MAIN  responded  that personal  use  fishing  under  AS                                                                    
16.05.940 is described as:                                                                                                      
                                                                                                                                
     'personal use  fishing' means the  taking, fishing                                                                         
     for,  or  possession  of  finfish,  shellfish,  or                                                                         
     other fishery  resources, by Alaska  residents for                                                                         
     personal  use and  not for  sale  or barter,  with                                                                         
     gill or dip net, seine,  fish wheel, long line, or                                                                         
     other means defined by the Board of Fisheries;                                                                             
                                                                                                                                
MR.  MAIN  added  that  sport   fishing  is  different  than                                                                    
personal use fishing.                                                                                                           
                                                                                                                                
CHAIR SEEKINS  said the  same license  exists for  sport and                                                                    
personal use fishing.                                                                                                           
                                                                                                                                
MR.  MAIN noted  that sport  fishing is  described under  AS                                                                    
16.04.940(29);  while  personal  use  fishing  is  described                                                                    
under AS 16.04.940(24). Sport fishing is described as:                                                                          
                                                                                                                                
     ...means the  taking of or attempting  to take for                                                                         
     personal use and not for  sale or barter any fresh                                                                         
     water,  marine, or  [anadromous] fish  by hook  or                                                                         
     line held  in the hand,  or by hook and  line with                                                                         
     the line attached  to a pole or rod  which is held                                                                         
     in  the  hand or  closely  attended,  or by  other                                                                         
     means defined by the Board of Fisheries;                                                                                   
                                                                                                                                
CHAIR SEEKINS referred to his  own fishing license and noted                                                                    
it  did  not  contain  a   category  for  personal  use.  He                                                                    
questioned how a person could  personal use fish to feed his                                                                    
family but not recreational fish.                                                                                               
                                                                                                                                
SENATOR OGAN indicated  that a person must buy  a sport fish                                                                    
license to personal use fish.                                                                                                   
                                                                                                                                
CHAIR  SEEKINS expressed  confusion about  whether or  not a                                                                    
sport fish license could be revoked  if it is not being used                                                                    
as a recreational license.                                                                                                      
                                                                                                                                
MR. MAIN  pointed out the  language in the present  law says                                                                    
"the court  may" and  in the 24  cases in  which individuals                                                                    
were  convicted  of  criminal   non-support,  CSED  did  not                                                                    
request the revocation of  recreational fishing licenses and                                                                    
the court did not order any such revocations.                                                                                   
                                                                                                                                
CHAIR SEEKINS  suggested, for the sake  of accuracy, putting                                                                    
language in the bill to  explain that a recreational license                                                                    
does  not  mean  a  license   necessary  to  participate  in                                                                    
personal use or subsistence hunting and fishing.                                                                                
                                                                                                                                
MR. MAIN noted that Senator Ogan  said he wrote most of that                                                                    
statute and  that it doesn't  apply to those items  that are                                                                    
not considered to be recreational licenses.                                                                                     
                                                                                                                                
CHAIR SEEKINS announced a brief recess.                                                                                         
                                                                                                                                
9:30 a.m.                                                                                                                       
                                                                                                                                
Upon   reconvening,   Senator    Therriault   rejoined   the                                                                    
committee.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS  commented that  the key  word in  the penalty                                                                    
for aiding and abetting in  the non-payment of child support                                                                    
is to  "restrict" a recreational fishing  or hunting license                                                                    
for  a period  not  to exceed  one year,  as  defined in  AS                                                                    
09.50.020(c).  He said  that subsection  refers  to a  sport                                                                    
fishing  license unless  it is  required  to participate  in                                                                    
personal  use or  subsistence  fishing. He  said  this is  a                                                                    
toothless law except that the  court could order a person to                                                                    
only use  a hunting  or fishing license  for the  purpose of                                                                    
personal use or subsistence, and not for recreation.                                                                            
                                                                                                                                
SENATOR FRENCH questioned whether  the law should read, "the                                                                    
court  may  restrict"  and not  address  suspend  or  revoke                                                                    
because the court cannot suspend a license.                                                                                     
                                                                                                                                
MR. MAIN repeated this was a  way to comply with the federal                                                                    
mandate but  not require the  Alaska Department of  Fish and                                                                    
Game (ADF&G)  to create  a database  that was  accessible by                                                                    
others.                                                                                                                         
                                                                                                                                
CHAIR SEEKINS said it just  seems that all an offender would                                                                    
have  to say  is that  he  or she  needs the  license for  a                                                                    
personal  use fishery.  He said  he  feels comfortable  with                                                                    
that  because he  did not  want a  person's personal  use or                                                                    
subsistence license to be affected.                                                                                             
                                                                                                                                
Members then  updated Senator Therriault  on the  issue they                                                                    
were discussing.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT  asked if that  penalty has  been imposed                                                                    
on people for  non-support and this bill will  now impose it                                                                    
on those who aid and abet the offender.                                                                                         
                                                                                                                                
MR. MAIN said that is correct.                                                                                                  
                                                                                                                                
SENATOR FRENCH  questioned how an  ADF&G officer  would look                                                                    
at a sportfishing license, know  the difference, and enforce                                                                    
that provision.                                                                                                                 
                                                                                                                                
CHAIR SEEKINS said he couldn't imagine.                                                                                         
                                                                                                                                
SENATOR  OGAN   recalled  that  requiring   social  security                                                                    
numbers on  fishing licenses was very  controversial several                                                                    
years ago  and he  believed that law  was amended  to remove                                                                    
that requirement.  He stated,  "I suppose  we may  hear that                                                                    
they have to wear a scarlet  letter or other things as well,                                                                    
since we do all this stuff to them."                                                                                            
                                                                                                                                
CHAIR SEEKINS  noted that fishing and  hunting licenses have                                                                    
been very useful in terms of finding people.                                                                                    
                                                                                                                                
SENATOR OGAN told members he heard  from a man last night on                                                                    
this  topic who  did  not want  to go  on  record, which  he                                                                    
thinks is  common because of  the scarlet letter  factor. He                                                                    
said  as  a  legislator,  he  has  heard  many  constituents                                                                    
complain about CSED and he  relayed some of their stories to                                                                    
members.  He expressed  concern that  those people  who lose                                                                    
jobs  or  have other  problems  and  get behind  with  child                                                                    
support payments will now become  felons and that there is a                                                                    
whole contingent  of people who  do not testify and  are not                                                                    
being represented. He said he  does not like people who will                                                                    
not help  support their children  but he cannot  support the                                                                    
bill as is  because it will make some people  felons who are                                                                    
trying to support their kids but cannot.                                                                                        
                                                                                                                                
CHAIR  SEEKINS  said  he  shares   some  of  Senator  Ogan's                                                                    
concerns  but two  things on  page 2  give him  comfort. The                                                                    
first is  on line  2, which is  the phrase,  "without lawful                                                                    
excuse," to provide  the support. That phrase  is defined on                                                                    
lines 23, 24, and 25 as  having the financial ability or the                                                                    
capacity  to acquire  that ability  through the  exercise of                                                                    
reasonable  efforts.  He said  if  the  person Senator  Ogan                                                                    
referred  to  does not  have  the  financial capacity,  that                                                                    
would be a lawful excuse  unless the person has the capacity                                                                    
to acquire that ability and refuses to do so.                                                                                   
                                                                                                                                
MR. MAIN confirmed that is true.                                                                                                
                                                                                                                                
CHAIR SEEKINS said someone who  has fallen on hard times and                                                                    
cannot  support  their  child  would  not  fall  under  this                                                                    
statute.                                                                                                                        
                                                                                                                                
MR. MAIN  said given that  CSED has only  four investigators                                                                    
and has  been able to  prosecute only  24 cases in  4 years,                                                                    
this bill will  not increase its caseload but  it will allow                                                                    
CSED to  negotiate deals  with people  because the  law will                                                                    
have more  teeth. He noted  there will always be  people who                                                                    
refuse to pay, no matter  what, and people who cannot afford                                                                    
to pay, no matter what.                                                                                                         
                                                                                                                                
CHAIR  SEEKINS asked  what  process CSED  would  have to  go                                                                    
through to prosecute a person with a class C felony.                                                                            
                                                                                                                                
MR.  MAIN said  a supervisor  would  review a  case. If  the                                                                    
amount  owed is  significant (at  least $15,000),  and there                                                                    
has been  no record of  payment, except perhaps  a permanent                                                                    
fund dividend,  all civil remedies have  been exhausted, and                                                                    
no  data  shows  the  individual is  earning  wages  or  has                                                                    
assets,  the   supervisor  would  refer  the   case  to  the                                                                    
investigations  unit.   That  unit  would   gather  evidence                                                                    
through subpoenas  and interviews,  and present  findings to                                                                    
an  assistant  attorney   general.  The  assistant  attorney                                                                    
general would then  review the case to  determine whether it                                                                    
meets  the  criteria.  If  it   appears  the  case  will  be                                                                    
successful, she will take that case  to a grand jury. If the                                                                    
grand jury  give the  go ahead, the  DOL would  proceed with                                                                    
prosecution. He pointed  out that red flags  could be raised                                                                    
at many points along the way  to where the case would not be                                                                    
pursued as a felony.                                                                                                            
                                                                                                                                
MS. WENDLANDT added that the  requirement that a person have                                                                    
lawful excuse  comes down to,  in most cases,  that person's                                                                    
ability  to pay.  She  said Mr.  Main's  description of  the                                                                    
process is absolutely correct.                                                                                                  
                                                                                                                                
CHAIR SEEKINS asked if DOL is  looking for the person who is                                                                    
living  large on  their  children and  refusing  to pay  any                                                                    
child support.                                                                                                                  
                                                                                                                                
MS. WENDLANDT said that is correct.                                                                                             
                                                                                                                                
SENATOR OGAN said although the  lawful excuse language is in                                                                    
the bill, the  policy is to not let people  in arrears drive                                                                    
or to  have an occupational license.  Therefore, that person                                                                    
cannot  work,  hire  a  lawyer, or  get  the  support  order                                                                    
modified.  He expressed  concern that  the policy  creates a                                                                    
death spiral  and is counterproductive  to the  children, as                                                                    
they will get no support. He said  he has talked to a lot of                                                                    
men  who see  no way  out  and ultimately  the children  are                                                                    
hurt.                                                                                                                           
                                                                                                                                
SENATOR THERRIAULT  said he has  heard from people  over the                                                                    
years  that  they can  pay  their  child support  obligation                                                                    
under  Rule 90.3  but to  do so  would disenfranchise  their                                                                    
current  families.   He  questioned   how  to   balance  the                                                                    
possibility that  a person  might have  to move  his current                                                                    
family  out  on  to  the  street  to  pay  a  child  support                                                                    
obligation from a previous family.                                                                                              
                                                                                                                                
MR. MAIN  said if that  individual will struggle to  pay, he                                                                    
can request a  hearing before a revenue  hearing officer. He                                                                    
indicated he  is aware of  more than  one case in  which the                                                                    
hearing  officer reduced  the child  support obligation.  In                                                                    
addition,  CSED  has   reduced  payments  when  establishing                                                                    
modifications when a second family is involved.                                                                                 
                                                                                                                                
SENATOR FRENCH  asked at what  stage of the process  would a                                                                    
person lose a driving license.                                                                                                  
                                                                                                                                
MR. MAIN  said a  person does  not have  to be  convicted of                                                                    
criminal  non-support   to  lose   a  driver's   license  or                                                                    
occupational license. CSED is  asking the individual to come                                                                    
to the  table at  that point because  the individual  owes a                                                                    
lot of money.  If the person comes to the  table and sets up                                                                    
a payment  agreement, the person  can have his  driver's and                                                                    
occupational  licenses back.  In  most of  those cases,  the                                                                    
individuals have not  paid any support for  quite some time.                                                                    
He repeated that a person could  be in arrears for 11 months                                                                    
before losing  the ability  to drive. He  said that  CSED is                                                                    
setting  up programs  to  outreach to  rural  areas to  help                                                                    
people understand the  process and to help  people pay their                                                                    
obligation on an ongoing basis. He  said if the person has a                                                                    
hardship issue,  CSED will reduce payments  until the person                                                                    
is back on his feet.                                                                                                            
                                                                                                                                
CHAIR SEEKINS asked how CSED  would deal with an obligor who                                                                    
says he cannot even begin to  pay until he gets his driver's                                                                    
license back.                                                                                                                   
                                                                                                                                
MR. MAIN said it does.                                                                                                          
                                                                                                                                
SENATOR OGAN stated:                                                                                                            
                                                                                                                                
     Part  of  my  argument, [indisc.]  is  that  we've                                                                         
     given  into the  federal mandates  to suck  up the                                                                         
     federal money  and we've given judicial  powers to                                                                         
     bureaucrats. Okay - you lose  your license. Okay -                                                                         
     you  can't  operate  your  business  anymore  just                                                                         
     because, you know,  then go for a  hearing - there                                                                         
     might be  some hearing  process in  the department                                                                         
     but...[END OF TAPE].                                                                                                       
                                                                                                                                
TAPE 04-47, SIDE A                                                                                                            
                                                                                                                                
CHAIR SEEKINS  agreed with  Senator Ogan  but said,  at this                                                                    
point,  he is  questioning what  to do  with the  person who                                                                    
owes over $10,000 in child support  or has not made a single                                                                    
payment  for 24  months  and has  been previously  convicted                                                                    
under  this  section  or  a  similar  provision  in  another                                                                    
jurisdiction and  the aggregate amount accrued  is more than                                                                    
$5,000 and has no lawful excuse.                                                                                                
                                                                                                                                
SENATOR   OGAN  said   the  second   offense   would  be   a                                                                    
misdemeanor.  He  noted  a  person would  lose  his  or  her                                                                    
ability to own a weapon if  convicted with a class C felony.                                                                    
He pointed  out these  people are not  violent and  the idea                                                                    
behind a  felony is that it  is a crime committed  with evil                                                                    
intent.  He  repeated  that the  constitution  bans  putting                                                                    
people into  prison for  debt. He  suggested that  the judge                                                                    
would come down harder on a second misdemeanor conviction.                                                                      
                                                                                                                                
SENATOR THERRIAULT commented that this  is the worst part of                                                                    
a legislator's job - trying to legislate people's lives.                                                                        
                                                                                                                                
CHAIR SEEKINS announced that HB  514 would be the first bill                                                                    
heard  at the  committee's next  meeting. He  then adjourned                                                                    
the meeting at 10:00 a.m.                                                                                                       

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